On 10 June 1999, the SC issued resolution 1244 (S/RES/1244), which provided a roadmap for the resolution of the Kosovo crisis, including through a phased withdrawal of all forces. It also authorized the deployment of an international civilian and military presence that would provide an international transitional administration and security presence in Kosovo, and facilitate a political process to determine its future status (ibid., paras. 5–11). This became the UN Interim Administration Mission in Kosovo. Following the breakdown of UN-mediated talks surrounding the final status of Kosovo in 2007, Kosovo unilaterally declared its independence from Serbia on 17 February 2008, which was immediately contested by Serbia as an illegal act of secession and a contravention of resolution 1244 (S/PV.5839, p. 4). The SC held an open meeting to discuss the independence declaration on 18 February 2008 (ibid.), during which there appeared to be divided views among SC members (including of the permanent five members) on the validity of the declaration.1 This was not followed by any resolution, nor even a presidential statement with regard to the issue.
On 8 October 2008, the GA responded to this deadlock by requesting an advisory opinion from the ICJ on whether the unilateral declaration of independence was in accordance with international law (A/RES/63/3). In its 22 July 2010 advisory opinion, the ICJ concluded that it did not violate international law.2 As a general matter, the ICJ found no principle of international law that would prohibit the declaration of independence.3 It further found that SC resolution 1244 was designed to be a temporary, interim measure, and did not contain a prohibition on concerned parties declaring independence; therefore, it could not conclude that the declaration contravened resolution 1244.4 In response to the ICJ’s advisory opinion, the GA adopted resolution 64/298 (adopted without vote) on 9 September 2010, acknowledging the content of the Court’s opinion (A/RES/64/298).
Further, the Court offered reflections on the respective roles of the SC and the GA with regard to the situation in Kosovo, and offered insights into its interpretation of Charter authorities and concurrence between the two bodies.5 These are discussed further in the legal background section of this Handbook.
Notes
- The representative of the Russian Federation expressed support for Serbia’s position; the Chinese representative recalled the need to continue ongoing negotiations on Kosovo’s final status; representatives of other Member States offered support for the idea of “supervised independence” being a natural culmination of the interim administration and process initiated in resolution 1244 (S/PV.5839). The representative for the US noted a blocked draft SC resolution from 2007 that would have facilitated a move towards independence under supervision (ibid., p. 18). ↩︎
- A/64/881. For further discission see Richard Falk, “The Kosovo Advisory Opinion: conflict resolution and precedent”, The American Journal of International Law, vol. 105, No. 1 (2011). ↩︎
- A/64/881, para. 84. ↩︎
- Ibid., paras. 99–100, 118–119. ↩︎
- Ibid., paras. 36–48. ↩︎